Nikolla v Lieke

[*1] Nikolla v Lieke 2012 NY Slip Op 50925(U) Decided on April 24, 2012 Supreme Court, Queens County Markey, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on April 24, 2012
Supreme Court, Queens County

Lek Nikolla, Plaintiff,

against

Arthur Carl Lieke et al., Defendant.



21573/2011



For the Plaintiff:

Krishna M. Vempaty, Esq.

117-18 Queens Boulevard

Forest Hills, New York 11375

For the Defendant:

Michael J. Lombardi, Esq.

81 Main Street

White Plains, New York 10601

Charles J. Markey, J.

In this action, it is alleged that defendants "jointly and severally" engaged plaintiff to perform work at property owned by defendant Lieke at 78-15 85th Street, Glendale, in Queens County, New York. The work assigned to plaintiff allegedly included the removal and disposal of insulation containing asbestos from certain pipes in the basement of the premises. Plaintiff contends he was not told the material contained asbestos. After removing the insulation from the pipes, plaintiff took the material and stored it in the garage of the premises at 83-55 Austin Street, Kew Gardens, in Queens County, New York, where he resides and is employed as the building superintendent. [*2]

The complaint alleges that the owner of the Austin Street building, plaintiff's landlord and employer, was fined by "New York City D.E.P., E.C.B. and other authorities" for the storage of asbestos on the premises. Plaintiff further asserts that he is liable to the Austin Street building's owner for the fines and other consequential damages resulting from the situation, and seeks to recover damages from defendants for these alleged economic injuries.

Defendant Arthur Carl Lieke, upon the foregoing papers, moves to dismiss the complaint, pursuant to CPLR 3211(a)(1) & (a)(7), to vacate the notice of pendency filed against Lieke's property, and to obtain costs, expenses, and sanctions.

The branch of the motion that is to cancel the notice of pendency filed by plaintiff against defendant Lieke's property has already been granted, following oral argument, by order of this Court dated December 22, 2011. The Court has the inherent power to cancel a notice of pendency where, as here, the action is outside the scope of CPLR 6501, the statutory authority for filing a notice of pendency, which extends only to actions in which the judgment demanded would affect the title to, or the possession use or enjoyment of, real property (see, 5303 Realty Corp. v O & Y Equity Corp., 64 NY2d 313 [1984]; Ewart v Ewart, 78 AD3d 992 [2nd Dept. 2010]; Nastasi v Nastasi, 26 AD3d 32 [2nd Dept. 2005]). The cancellation of a notice of pendency under such circumstances is not based on one of the grounds available under the terms of CPLR 6514 (Nastasi v Nastasi, 26 AD3d 32 , supra), and, therefore, does not support an award of costs and disbursements, pursuant to CPLR 6514(c) (see, Congel v Malfitano, 61 AD3d 807, 809 [2nd Dept. 2009]). Accordingly, the part of the motion that is for such an award is denied.

Turning to the part of the motion that is to dismiss the complaint, movant has submitted documentary evidence of an agreement between defendant Lieke and Rami Construction for the renovation of Lieke's two-story residence and basement at 78-15 85th Street, including the removal of asbestos from piping in the basement and its environmental disposal in accordance with sanitation department rules and regulations.

Plaintiff's own affidavit in opposition, in addition, confirms that he was hired by defendant Rahamim Sultana, either individually or in his capacity as principal of Rahamim Construction Company (jointly referred to by plaintiff as "Rami"), to perform work at Lieke's premises. Plaintiff states, more specifically, that it was Rami who defined his work and asked him to remove and dispose of insulation from certain pipes in the basement. He also asserts that he was not defendant Lieke's employee. Furthermore, plaintiff's attorney informed the Court during oral argument of this motion that Lieke hired Rami pursuant to a contract between them and that plaintiff was hired by Rami to do work required under the contract. Plaintiff's counsel admitted that plaintiff dealt only [*3]with Rami and had neither met defendant Lieke nor discussed anything with him.

Although affidavits submitted in response to a motion to dismiss most often serve the limited purpose of remedying defects in a complaint, there are instances when a plaintiff's submissions will conclusively establish that he has no cause of action (Held v Kaufman, 91 NY2d 425, 430 [1998]; Rovello v Orofino Realty Co., 40 NY2d 633, 636 [1976]). This is such a case.

The record on this motion shows that material facts claimed in the complaint concerning defendant Lieke's relationship to plaintiff and the work plaintiff performed are not facts at all (see, Guggenheimer v Ginzburg, 43 NY2d 268, 275 [1977]). Under the facts herein, plaintiff has no cognizable cause of action against defendant Lieke for the economic injuries he claims to have suffered due to being held responsible by his landlord/employer for the fines imposed for the storage of asbestos in the garage of the Austin Street building. Accordingly, the branch of the motion that is for dismissal of the complaint is granted.

The Court notes that plaintiff did not allege a cause of action for personal injury and made some reference in his opposing affidavit to seeking to amend his complaint to do so, but he has not made a cross motion for such relief (CPLR 2215, 3025). In any event, the record does not support a cause of action for personal injury against defendant Lieke as owner of the property. Plaintiff's own version of the facts establishes that defendant Lieke did not have the authority to, and did not, supervise, direct or control plaintiff's work (see, Ruiz v Walker, 93 AD3d 838 [2nd Dept. 2012]; Ortega v Puccia, 57 AD3d 54 [2nd Dept. 2008]).

The application for sanctions for frivolous conduct is denied. The complaint and the notice of pendency herein were filed by plaintiff while acting pro se. While the complaint against defendant Lieke has been found to lack merit and the action has been held to be outside the scope of CPLR 6501, under the circumstances presented and considering the early stage of the litigation, the Court exercises its discretion to deny an award of costs or sanctions under 22 NYCRR section 130-1.1 (see, Derby v Bitan, 89 AD3d 889 [2nd Dept. 2011]).

The foregoing constitutes the decision, opinion, and order of the Court.

_______________________________

J.S.C.

Dated: April 24, 2012

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